United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
January 15, 2014
Before
WILLIAM J. BAUER, Circuit Judge
JOEL M. FLAUM, Circuit Judge
DIANE S. SYKES, Circuit Judge
No. 12-2471
FH-T,
Petitioner,
v.
ERIC J. HOLDER, JR., ATTORNEY
GENERAL OF THE UNITED STATES,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals.
No. 12-2471
ORDER
2 No. 12-2471
On consideration of the petition for rehearing and petition
for rehearing en banc* filed by petitioner in the above case on
September 6, 2013, a majority of active judges voted to deny
rehearing. Chief Judge Wood, Circuit Judges Posner, Rovner
and Hamilton voted to grant en banc rehearing. Chief Judge
Wood has written an opinion, which Judges Posner, Rovner
and Hamilton have joined, dissenting from the denial of the
petition.
*
Circuit Judge Ann Claire Williams did not participate in the consideration
of this petition.
No. 12‐2741 3
WOOD, Chief Judge, with whom POSNER, ROVNER, and
HAMILTON, Circuit Judges, join, dissenting from the denial of
rehearing en banc.
One cannot read the panel opinion in this case without
appreciating how difficult the issues are, and how troubled
the panel was with the outcome that it believed it was
required to reach. I agree with the panel’s conclusion that
petitioner FH‐T failed to exhaust his argument about the
“knowledge exception” to the bar for asylum that applies to
persons who provided material support to a terrorist
organization. But I cannot subscribe to the panel’s
conclusion that it was powerless to do anything about the
procedural dead end in which a person like FH‐T finds
himself—unable to receive an answer from the Board of
Immigration Appeals on the question whether he is eligible
for asylum apart from what I will call the terrorism bar, yet
unable to obtain a determination from the Department of
Homeland Security on an application for a waiver of the
terrorism bar without a decision from the BIA. The panel
suggests at the end of its opinion (sl. op. at 33) that this is a
problem that can be solved only by Congress. In my view,
however, the problem is regulatory in both its creation and
its solution: we have an instance of two agencies (the
Department of Justice, through its Executive Office of
Immigration Review, and the Department of Homeland
Security) that have thwarted the congressional scheme
through their regulatory apparatus. Legislative intervention
is not necessary to empower these two Executive
departments to solve a problem of their own making. To the
4 No. 12‐2741
contrary, there are a number of ways in which they could
come into compliance with the statutory framework. I
outline a few of them below. The proper procedure for
adjudicating terrorism‐bar cases is important enough on its
own to justify the attention of the full court. But there is
more here: this case raises the general problem (which we
have seen elsewhere in immigration cases) of assuring that
agency regulations do not defeat rights found in statutes. Cf.
Kucana v. Holder, 558 U.S. 233 (2010) (refusing to extend
proscription against judicial review of decisions made
discretionary by statute to those made discretionary by
regulation). I believe that this case is worth the attention of
the en banc court, and so I respectfully dissent from the
decision not to set it for rehearing.
A quick review of the underlying facts and pertinent
legal materials is helpful to put my concerns in context. FH‐
T is an Eritrean citizen. Here is what the CIA’s World
Factbook has to say about Eritrea:
The UN established Eritrea as an autonomous
region within the Ethiopian federation in 1952.
Ethiopia’s full annexation of Eritrea as a
province 10 years later sparked a violent 30‐
year struggle for independence that ended in
1991 with Eritrean rebels defeating
government forces. Eritreans overwhelmingly
approved independence in a 1993 referendum.
Isaias Afworki has been Eritrea’s only
president since independence; his rule,
No. 12‐2741 5
particularly since 2001, has been highly
autocratic and repressive. His government has
created a highly militarized society by
pursuing an unpopular program of mandatory
conscription into national service, sometimes
of indefinite length.
https://www.cia.gov/library/publications/the‐world‐
factbook/geos/er.html (last visited Jan. 15, 2014). At the age
of 15, FH‐T joined the Eritrean People’s Liberation Front
(EPLF) and was quickly swept up in that violent war for
independence. He regretted his decision almost
immediately, but he discovered that he was not free to leave,
and he thus remained with the EPLF for the duration of the
war. During that time, FH‐T’s duties included driving a
truck to distribute food and clothing and transferring calls
and requests for truck parts.
After the war ended, the EPLF transformed itself into a
political party, the People’s Front for Democracy and Justice
(PFDJ), and Isaias Afworki was named president by a
transitional legislature. Unfortunately, this did not herald
the adoption of a democratic form of government. To the
contrary, “the constitution, ratified in May 1997, did not
enter into effect, pending parliamentary and presidential
elections; parliamentary elections were scheduled in
December 2001 but were postponed indefinitely; currently
the PFDJ is the sole legal party and controls all national,
regional, and local political offices.” World Factbook, supra.
In connection with the EPLF’s re‐branding as a political
6 No. 12‐2741
party, FH‐T found himself in the mandatory national service
referenced above, where he was assigned to work as a
transportation supervisor for a state‐owned company. He
repeatedly spoke out against the “national service” program,
which supposedly required 18 months of service, but in
reality often amounted to indefinite compulsory work. The
PFDJ was not amused: it imprisoned FH‐T in a military
camp for five months under horrendous conditions; he
became seriously ill and lost 30 pounds. At the end of that
period, he was released without having been charged with
any wrongdoing. He was forced to return to his old job, but
he was not permitted to do any work, and in exchange he
received no pay. In 2007, when he heard of a possible
governmental attempt to kill him, he fled to the United
States and filed for asylum. After his departure, his father
and sister were arrested.
FH‐T’s asylum application prompted DHS to issue a
Notice to Appear on August 15, 2007, which had the effect of
putting him into removal proceedings. It is important to note
that DHS (through its Citizenship and Immigration Service,
or CIS) takes care of most applications for waiver of the
terrorism bar administratively—that is to say, without the
involvement of an Immigration Judge or the BIA. See
statistics at http://www.rcusa.org/uploads/pdfs/TRIG%20stat
s%20(only),%206‐5‐12.pdf (last visited Jan. 15, 2014) (cited in
Petition for Rehearing En Banc at 12 n.8). We are not
concerned in this case with the set of cases that are handled
exclusively by DHS; our problem is with the smaller, but
important, group of cases in which the noncitizen has been
No. 12‐2741 7
placed within formal removal proceedings. The latter cases
are handled by the Executive Office for Immigration Review
in the Justice Department.
The IJ denied FH‐T’s applications for asylum and
withholding of removal, but he did grant deferral of removal
under Article III of the U.N. Convention Against Torture,
1465 U.N.T.S. 85 (1984), which the United States has signed.
The IJ found that FH‐T’s account of his knowledge of the
EPLF’s activities was not credible, that FH‐T had failed to
establish his eligibility for asylum, and that he was
statutorily ineligible for withholding of removal because he
had provided material support to the EPLF, which the IJ
characterized as a Tier III terrorist organization for purposes
of 8 U.S.C. § 1182(a)(3)(B)(vi)(III). (As the panel points out,
sl. op. at 9–10, terrorist organizations fall into several tiers:
DHS designates the Tier I groups, and the Department of
State designates the Tier II groups. Tier III is more flexibly
defined and there is no formal list of such organizations;
among others, the IJs have the authority to decide if a group
fits the Tier III definition.)
It is the BIA’s opinion affirming the IJ’s ultimate
conclusions that is critical for our purposes. The BIA noted
that FH‐T did not challenge the finding that the EPLF was a
Tier III terrorist organization; I agree with both the Board
and with the panel that this issue is not before us. FH‐T
stressed instead his assertions that the support he provided
for the EPLF was not material and that he had no knowledge
of the group’s terrorist activities. Like the IJ, the BIA found
8 No. 12‐2741
no merit in these arguments. The BIA concluded with the
following statement and footnote (emphasis added):
As the respondent [FH‐T] is barred from
asylum and withholding of removal [because
of the terrorism bar], we need not address the
other arguments on appeal regarding the merits
of the respondent’s claim of persecution in
Eritrea on account of actual or imputed
political opinion. [Footnote 1: To the extent that
the respondent has argued his possible
eligibility for a waiver under section
212(d)(3)(B)(i) of the Act [8 U.S.C. §
1182(d)(3)(B)(i)], we note that the Secretary of
State has the sole authority to grant this
waiver, and this provision does not affect the
disposition of the instant removal
proceedings.]
In fact, the Board’s assumption that only the Secretary of
State is empowered to grant a waiver of the terrorism bar
was incorrect. The statute provides as follows:
The Secretary of State, after consultation with
the Attorney General and the Secretary of
Homeland Security, or the Secretary of Homeland
Security, after consultation with the Secretary
of State and the Attorney General, may
determine in such Secretary’s sole
unreviewable discretion … [that a waiver
should be granted].
No. 12‐2741 9
8 U.S.C. § 1182(d)(3)(B)(i) (emphasis added).
In fact, the Secretary of State loses his power to grant a
waiver once removal proceedings have begun, see id., and
the Secretary of Homeland Security takes responsibility for
many, if not most, of these waivers. On October 23, 2008,
Homeland Security, through CIS, issued a document entitled
“Fact Sheet: Department of Homeland Security Implements
Exemption Authority for Certain Terrorist‐Related
Inadmissibility Grounds for Cases with Administratively
Final Orders of Removal.” The Fact Sheet indicates that the
Secretary of Homeland Security had begun as of September
8, 2008, to implement his exemption authority under §
1182(d)(3)(B)(i) “for cases issued administratively final
orders of removal by the Department of Justice (DOJ),
Executive Office for Immigration Review (EOIR).” The Fact
Sheet sets out two prerequisites for the Secretary’s
consideration: (1) the order of removal must be
“administratively final”—in other words, the BIA must have
affirmed the order or the period for seeking review before
the BIA must have expired; and (2) for those not in custody,
the exemption petition will be forwarded to CIS “if relief or
protection was denied solely on the basis of one of the
grounds of inadmissibility for which exemption authority
has been exercised by the Secretary.” For those in custody,
the Fact Sheet similarly states that the individual must
“otherwise [be] eligible for consideration.” It is no mystery
why DHS would choose to insist that all other issues be
resolved before the Secretary considers an exemption
10 No. 12‐2741
petition; there is no need for him to waste his resources if the
petitioner could still be removed on independent grounds.
Proper resolution of this case also requires us to look at
the key statutes. First is 8 U.S.C. § 1182(a)(3)(B)
(§ 212(a)(3)(B) of the Act), which designates as “ineligible to
receive visas and ineligible to be admitted to the United
States” any alien who has engaged in terrorist activities.
Section 1182(a)(3)(B)(vi) defines the term “terrorist
organization” by classifying such organizations into three
tiers. The one relevant here is subsection III, which speaks of
“an organization … that is a group of two or more
individuals, whether organized or not, which engages in, or
has a subgroup which engages in, the activities described in
subclauses (I) through (VI) of clause (iv). Those activities
range from murder, to gathering information, to soliciting
funds for the terrorist organization, to solicitation of
membership in the group. The rule of § 1182(a)(3)(B) is not
absolute, however. Section 1182(d)(3)(B)(i) confers authority
on either the Secretary of State, in consultation with the
Attorney General and the Secretary of Homeland Security,
or the Secretary of Homeland Security, in consultation with
the other two, to “determine in such Secretary’s sole
unreviewable discretion that subsection (a)(3)(B) of this
section shall not apply with respect to an alien within the
scope of that subsection … .” And, critically for our case,
Congress provided for judicial review of legal issues that
may arise in conjunction with waiver determinations:
No. 12‐2741 11
Notwithstanding any other provision of law
(statutory or nonstatutory), including section
2241 of Title 28, or any other habeas corpus
provision, and sections 1361 and 1651 of Title
28, no court shall have jurisdiction to review such
a determination or revocation except in a
proceeding for review of a final order of removal
pursuant to section 1252 of this title, and review
shall be limited to the extent provided in section
1252(a)(2)(D) of this title. The Secretary of State
may not exercise the discretion provided in
this clause with respect to an alien at any time
during which the alien is the subject of
pending removal proceedings under section
1229a of this title.
8 U.S.C. § 1182(d)(3)(B)(i) (emphasis added). In summary,
Congress has (1) created a rule forbidding certain aliens who
are or were associated with terrorist activities from being
admitted to the United States; (2) created an exemption from
that rule, to be awarded solely in the discretion of the
Executive Branch; but it has (3) permitted judicial review of
legal issues that might arise in connection with the exercise
of the exemption authority. Indeed, one could argue that the
last sentence in the excerpt just above indicates that the
Secretary of State (and by inference also the Secretary of
Homeland Security) must await the conclusion of removal
proceedings before making an exemption decision. At a
minimum, the final sentence means that only the Secretary
12 No. 12‐2741
of Homeland Security may act once removal proceedings
have commenced.
Nowhere in this statutory scheme can one find a
command from Congress that authorizes or compels the BIA
to refrain from deciding issues that might influence the
removability of an alien before it. Normally, it is up to the
BIA to decide how many issues it should reach on an appeal
from an IJ, just as this court often chooses not to reach
arguments that a party has made if the case can rest on
another ground. But “normally” does not mean always. If
the operation of a different statute depends on a finding of
fact or a conclusion of law from the BIA, then it is up to the
BIA to devise administrative procedures that will assure that
it performs its duty. No statute, to my knowledge, forbids
the Board from creating a structure that will ensure that the
Board does not effectively deprive a noncitizen in FH‐T’s
position from seeking a waiver before DHS.
It is at this point, in my view, that the considerable line of
cases disapproving agency procedures that defeat an alien’s
right to obtain a merits determination on a ground for
withholding removal becomes relevant. In Subhan v.
Ashcroft, 383 F.3d 591 (7th Cir. 2004), the noncitizen had
applied for adjustment of status under a statute that
permitted him to receive that benefit if he was certified as
eligible for employment in the United States. He received
two continuances, but then the IJ denied him a third. We
held that this denial had the effect of barring him from relief
that Congress had authorized: “When a request for an
No. 12‐2741 13
adjustment of status is denied there is no judicial review
because the denial is one of the discretionary orders
expressly made nonreviewable by section 1252(a)(2)(B). But
no discretion was exercised here to deny a requested
adjustment of status; instead, the denial of the continuance
prevented the alien from obtaining action on his request.”
We found it “unlikely that Congress, intending, as it clearly
did, to entitle illegal aliens to seek an adjustment of status
upon the receipt of certificates from the state and federal
labor departments, at the same time also intended section
1252(a)(2)(B)(ii) to place beyond judicial review decisions by
the immigration authorities that nullified the statute.” Id. at
595.
Benslimane v. Gonzales, 430 F.3d 828 (7th Cir. 2005), offers
another application of the same principle. Benslimane had
originally entered under a visitor’s visa and overstayed, but
later his spouse applied on his behalf for a spousal visa and
he sought adjustment of status. His removal proceeding
went forward nonetheless, and at one point his lawyer erred
by failing to submit the adjustment of status request to the IJ
(thinking that it could not be filed there until it had been
adjudicated). The IJ denied a continuance and ordered
Benslimane removed. This court ruled that the decision to
deny a continuance was reviewable because it “had the
effect of a substantive ruling on the application to adjust his
status … .” Id. at 832. Writing more broadly, we said that
“[a]n immigration judge cannot be permitted, by arbitrarily
denying a motion for a continuance without which the alien
cannot establish a ground on which Congress has
14 No. 12‐2741
determined that he is eligible to remain in this country, to
thwart the congressional design.” Id.
Finally, in Ceta v. Mukasey, 535 F.3d 639 (7th Cir. 2008),
we faced a situation in which an Albanian citizen was
seeking asylum in the United States. He was concededly
removable, and his application for asylum had been denied,
but he was also seeking adjustment of status on the basis of
his marriage to an American citizen. Under the regulations
in force when he applied, he was ineligible for adjustment of
status, but during the pendency of his appeal to the BIA,
DHS and the Attorney General issued an interim rule
providing that applicants for adjustment had to apply with
CIS whether or not they were in removal proceedings. The
IJ, however, denied Ceta a continuance that would have
permitted him to pursue that avenue. This court found that
the “BIA’s affirmation of [the denial of] Mr. Ceta’s request
for a continuance amounts, under the circumstances of this
case, to a denial of his statutory right to apply for adjustment
of status.” Id. at 646. He had become, we said, “trapped
within a regulatory interstice” because he had a statutory
right to apply for adjustment of status but he would be
removed before CIS could adjudicate his application.
I recognize that there are distinctions to be drawn
between these cases and FH‐T’s, such as the procedural
posture or the details of statutory language. But none of
these differences overcomes the relevant similarity: in each
of these three cases, the alien had a statutory right to seek a
form of relief, and the immigration agencies erected a
No. 12‐2741 15
regulatory barrier to the opportunity to seek the relief in
question. The same situation exists here. FH‐T has a
statutory right to seek a waiver of the terrorism bar, but
between them, the EOIR and DHS have created regulatory
barriers that made it impossible for him to place his case
before the Secretary of Homeland Security and obtain a
“yes” or “no” answer. I am not persuaded by the panel’s
opinion that we can or should accept that answer.
I conclude with two points. First, it is premature to worry
about relieving FH‐T from any consequences that flow from
the existence of a “final removal order.” Finality is one of the
criteria that DHS has identified as necessary before it will
entertain an exemption request. Just because there is a final
order of removal does not mean that a bag‐and‐baggage
letter is coming along imminently. Those letters are within
the control of DHS anyway, and I would hope that one arm
of the agency can find a way to ensure that it does not
nullify what another arm of the agency is doing. FH‐T, to
this extent, is asking for more than we need to address right
now. If such a letter were to arrive before he obtains his
answer from DHS, I presume that his attorney would seek
an emergency stay, and we would have a better record on
which to consider the facts and the equities. Second,
although I believe that the agencies here have stumbled into
a system that impermissibly nullifies rights that Congress
has created, I am not suggesting that the solution is to have
courts micromanage the proper fix. One possible answer
would be to insist that the BIA adjudicate all issues that
might stand in the way of an exemption from the terrorism
16 No. 12‐2741
bar, in cases where it is an issue; another possible “fix”
would be for DHS to change the policy expressed in the Fact
Sheet and to state that it will adjudicate all exemption
requests in cases where there is a final BIA order (or its
equivalent), regardless of how many issues the BIA reached.
And there may be others; it is up to the agencies to decide
how they want to solve this problem. The one thing they
cannot do, however, is to adopt a system that flies in the face
of statutory rights.
For these reasons, I dissent from the decision not to hear
this case en banc.